from 11 October Cato Daily Dispatch (www.cato.org), worth reading
- Thread starter alan
- Start date
What Miller argued was that a SBS was protected by the Second Amendment and therefore possession of an unregistered SBS was not illegal. The courts (incorrectly) ruled that since a SBS was not a "militia/military" firearm, it was not protected by the Second Amendment and therefore could be regulated by the government. The SBS actually was a "militia" weapon as it had been used by American soldiers in the trench warfare of WWI.
What the ruling did not address was whether the restrictions the NFA placed on obvious military weapons, like the machinegun, were unconstitutional. Had Miller been arrested using a machinegun instead of a SBS, it is possible that they would have overturned the 1934 NFA.
And given the currents court's penchant for overturning the Constitution based on the deadly doctrine of "government interests", it is pure suicide to get a 2A case before the present court.
But some people would rather grandstand on "principle" than play the long chess game that actually has a chance of winning.
But some people would rather grandstand on "principle" than play the long chess game that actually has a chance of winning.
Misinformation
"What Miller argued was that a SBS was protected by the Second Amendment and therefore possession of an unregistered SBS was not illegal. The courts (incorrectly) ruled that since a SBS was not a "militia/military" firearm, it was not protected by the Second Amendment and therefore could be regulated by the government."
Not true.
Miller did NOT argue ANY application of the shotgun at his trial, which is where the issue should have been raised. Appeals are based upon the trial record; anything not in that record is not before the appeals court.
What the Supreme Court DID say was that, as the matter had not been raised at trial, it could not make a finding on that issue on appeal. The matter was sent back down for a hearing on that issue; it was never held (I think Miller died prior to the hearing, rendering the matter moot).
Note that the Miller court DID say that, when the unorganized militia was assembled, it should come bearing its OWN arms, "of a type in common use at the time."
"What Miller argued was that a SBS was protected by the Second Amendment and therefore possession of an unregistered SBS was not illegal. The courts (incorrectly) ruled that since a SBS was not a "militia/military" firearm, it was not protected by the Second Amendment and therefore could be regulated by the government."
Not true.
Miller did NOT argue ANY application of the shotgun at his trial, which is where the issue should have been raised. Appeals are based upon the trial record; anything not in that record is not before the appeals court.
What the Supreme Court DID say was that, as the matter had not been raised at trial, it could not make a finding on that issue on appeal. The matter was sent back down for a hearing on that issue; it was never held (I think Miller died prior to the hearing, rendering the matter moot).
Note that the Miller court DID say that, when the unorganized militia was assembled, it should come bearing its OWN arms, "of a type in common use at the time."
Hkmp5sd:
An interesting and unanswered, unanswerable question re Miller might be as follows. Given that Miller was NOT represented before USSC, and that therefore the government's position and claims went unquestioned, what might The Court have done had Miller been represented by counsel, which could well have brought up the fact that short barreled shotguns had been MILITARY ISSUE during WW1 and earlier, not to mention their use by the militray during what have been described as "the years between the wars".
The following has also been brought up, I believe. Given that your average bolt, lever or pump action rifle or shotgun was NOT an item of military issue, whereas such arms as the Browning Automatic Rifle and Thompson Sub-machinegun were, that the above mentioned "sporting arms" might lack constitutional protection, while possession of military issue small arms might benefit from constitutionally protected status. After all, militia weapons, while they might NOT include artillery pieces, could well includ such arms as were normally issued to the infantryman of the day. In 1939, such arms would include the BAR and the Thompson, as well as the Johnson Light Machinegun. I've NOT mentioned the Garand because that was simply a semi-automatic rifle. Today, a listing of individual weapons would certainly include various sub-machineguns such as the MP-5, as well as selective fire rifles such as the M-16, in it's various configurations.
If I remember correctly, one of the then sitting justices, McReynolds I think, offered something about arms normally issured to the individual soldier, this would exclude crew served weapons, being constitutiponally protected when possessed by individuals.
Anyhow, Miller was not represented before The Court, so all we are doing here is speculating, if you will, playing "what if" sort of games, which while perhaps interesting, do not solve current questions.
As to the D.C. law, which dates to 1976, the 200th anniversity of the country, local government bodies do all manner of dumb, questionable, perhaps even illegal things. This act was APPROVED by a majority of The Congress (House and Senate), as memory serves.
An interesting and unanswered, unanswerable question re Miller might be as follows. Given that Miller was NOT represented before USSC, and that therefore the government's position and claims went unquestioned, what might The Court have done had Miller been represented by counsel, which could well have brought up the fact that short barreled shotguns had been MILITARY ISSUE during WW1 and earlier, not to mention their use by the militray during what have been described as "the years between the wars".
The following has also been brought up, I believe. Given that your average bolt, lever or pump action rifle or shotgun was NOT an item of military issue, whereas such arms as the Browning Automatic Rifle and Thompson Sub-machinegun were, that the above mentioned "sporting arms" might lack constitutional protection, while possession of military issue small arms might benefit from constitutionally protected status. After all, militia weapons, while they might NOT include artillery pieces, could well includ such arms as were normally issued to the infantryman of the day. In 1939, such arms would include the BAR and the Thompson, as well as the Johnson Light Machinegun. I've NOT mentioned the Garand because that was simply a semi-automatic rifle. Today, a listing of individual weapons would certainly include various sub-machineguns such as the MP-5, as well as selective fire rifles such as the M-16, in it's various configurations.
If I remember correctly, one of the then sitting justices, McReynolds I think, offered something about arms normally issured to the individual soldier, this would exclude crew served weapons, being constitutiponally protected when possessed by individuals.
Anyhow, Miller was not represented before The Court, so all we are doing here is speculating, if you will, playing "what if" sort of games, which while perhaps interesting, do not solve current questions.
As to the D.C. law, which dates to 1976, the 200th anniversity of the country, local government bodies do all manner of dumb, questionable, perhaps even illegal things. This act was APPROVED by a majority of The Congress (House and Senate), as memory serves.
Hkmp5sd:
I could be wrong, but I thought that Miller and his partner, Layton as I recall had walked. If memory serves, Layton was killed in prison, a different matter. I had thought that Miller had disappeared into the woodwork so to speak, and while he is undoubtedly long dead, his death had nothing to do with the USSC case. For one reason or another, he was not represented by counsel, and if he had been dead at the time of the "arguments", his death would have negated the entire matter, wouldn't it?
In any event, it is interesting to speculate on how the court MIGHT have ruled, had there been a rebuttal of the governments side. Unfortunately, as we all know, there wasn't.
I could be wrong, but I thought that Miller and his partner, Layton as I recall had walked. If memory serves, Layton was killed in prison, a different matter. I had thought that Miller had disappeared into the woodwork so to speak, and while he is undoubtedly long dead, his death had nothing to do with the USSC case. For one reason or another, he was not represented by counsel, and if he had been dead at the time of the "arguments", his death would have negated the entire matter, wouldn't it?
In any event, it is interesting to speculate on how the court MIGHT have ruled, had there been a rebuttal of the governments side. Unfortunately, as we all know, there wasn't.